ERROR TO THE SUPREME COURT OF THE STATE OF NEW HAMPSHIRE.
MR. JUSTICE PECKHAM delivered the opinion of the court.
This was a proceeding on habeas corpus in a state court of New Hampshire to obtain the discharge of the plaintiff in error from arrest under a warrant given by the governor of that State, directing the return of the plaintiff in error to the Commonwealth of Massachusetts, as a fugitive from justice.
Upon the hearing the state court refused to discharge the plaintiff in error, the order of refusal was affirmed by the Supreme Court, and she has brought the case here for review. (On a former proceeding in Supreme Court, see 71 N.H. 594.)
The proceedings before the governor of New Hampshire to obtain the warrant of arrest were taken under section 5278 of the Revised Statutes of the United States, reenacting the statute approved February 12, 1793, 1 Stat. 302; 3 U.S. Comp. Stat. 3597, relating to the arrest of persons as fugitives from justice, under clause 2 of section 2 of Article IV of the Constitution of the United States.
The papers before the governor of New Hampshire consisted of a copy of an indictment of the plaintiff in error, found in Massachusetts on the second Monday of February, 1902; it contained three counts, and charged the plaintiff in error with uttering and publishing as true a certain forged instrument, purporting to be a will, well knowing the same to be forged. The first count alleged that the crime was committed on the twenty-eighth of February, 1895, at Cambridge, in the county of Middlesex, in the Commonwealth of Massachusetts; and it also alleged that since the commission of the offense the plaintiff had not been usually or publicly a resident in that Commonwealth.
The second count averred the uttering, etc., to have been on the seventeenth day of May, in the year 1895, in the same place, and the indictment had the same averment as to the non-residence of the plaintiff in error as contained in the first count.
The third count averred the uttering at the same place as that named in the other two counts, but laid the date as the twentieth day of November, 1901. There was also before the governor of New Hampshire an application, dated the twenty-sixth of February, 1902, signed by George A. Sanderson, district attorney for the Northern District of Middlesex, to the governor of Massachusetts, requesting a requisition from him upon the governor of New Hampshire for the extradition of
the plaintiff in error, who, as stated in the application, stood charged by indictment with the crime of uttering forged wills, committed in the county of Middlesex (on the days stated in the indictment), and who, to avoid prosection, had fled from the jurisdiction of the Commonwealth and was a fugitive from justice, and was within the jurisdiction of the State of New Hampshire. It was also stated in the application that the indictment was not found by the grand jury until the February sitting of the Superior Court in the year 1902. There was also before the governor of New Hampshire a copy of what purported to be an affidavit of one Whitney, the original of which was used before the governor of Massachusetts, to obtain the requisition. It is short and is as follows: